Monthly Archives: July 2013

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The instant that Trayvon Martin’s family, their attorneys, and civil rights leaders honed media attention on his slaying and made it a national flashpoint issue, the cry rose for a Justice Department probe and possible prosecution of George Zimmerman on civil rights charges. The call was made because Sanford police officials and local prosecutors initially declined to prosecute Zimmerman and there was the strong suspicion that if they did, there was little confidence that prosecutors would win a conviction in state courts. This possibility loomed even larger when the prosecution took big hits for how it handled witnesses and the evidence against Zimmerman. This raised the real possibility that Zimmerman would be acquitted.
This effectively tossed the ball back into the Justice Department’s court. The demand almost certainly will be made for a civil rights prosecution of Zimmerman. As compelling as a federal prosecution seems to be, and as painful as it to admit, such a prosecution is unlikely. The first tip that this is unlikely was the initial probe by the department. After making an exhaustive investigation in which it took testimony from legions of witnesses, the department could not find any evidence that Zimmerman attacked Martin out of racial animus. This is the one requisite for a federal prosecution. There has to be clear smoking gun evidence of a hate motive in the attack.
The next requisite is there has to a compelling interest. That’s vague, loosely defined, and solely a judgment call by a federal prosecutor. The prosecutor must obtain prior approval from the assistant attorney general prior to bring the prosecution. The few times that the Justice Department has prosecuted cops or racist vigilantes on civil rights charges after they’ve been acquitted in state courts, it came after either massive and sustained protests or in the case of the cops that beat Rodney King in 1991, massive civil unrest following their acquittal in state courts. The Justice Department certainly has the authority to bring a second prosecution against Zimmerman after a state prosecution has failed. But there is the “petite rule” named after the U.S. Supreme Court’s decision in 1960 that involved the prosecution of an individual in two federal district courts for what amounted to the same offense. The Petite policy appears in the Department of Justice’s manual and places tight restrictions on when it can authorize a prosecution after failure to convict a defendant in state courts.
The reason for the inaction in civil rights abuse cases such as the Martin killing, the feds note that they are the “backstop” to local prosecutors. This means that they rigidly adhere to the legal doctrine of separation of federal and state powers. The killing of Martin, as all murder cases, was first and last a state matter, and the feds scrupulously defer to local authorities to bring charges. If state or county prosecutors won’t bring charges or bungle the prosecution when they do, the Justice Department does not regard it as its responsibility to usurp the decision of local authorities not to retry or second guess a defendant’s acquittal.
This presents another obstacle that causes Justice Department officials to take a hands off stance toward prosecuting individuals who kill unarmed civilians under the legal or quasi-legal color of law. The attorneys that defend the shooters almost always are A-team attorneys. They are highly skilled, and have had much experience defending police officers, or men like Zimmerman, who kill. They seek to get as many whites on a jury as possible. The presumption is that white jurors are much more likely to be middle-class, and conservative, and much more likely to believe the testimony of police and prosecution witnesses than black witnesses, defendants, or even the victims. The same rule applies to black or Latino jurors. They are generally middle-class, and share the same biases, and negative attitudes toward those they perceive as the criminal element as many whites. This was a major reason why Zimmerman’s defense attorneys did not seek a change of venue for his trial. They pretty much got the jury that would be most likely to be sympathetic to their pitch that Zimmerman acted in self-defense and that Martin was the aggressor.
A Zimmerman civil rights prosecution presents an even legal higher bar for federal prosecutors. They’d have to sideswipe Florida’s so-called stand your ground law that says that individuals are perfectly within their rights not to retreat in the face of a real or perceived threat. In plain English, if they think they’re in danger no matter how whimsical the threat they can take action up to and including deadly force. Though the stand your ground was not an issue in Zimmerman’s defense, the self-defense claim was and that is implicit in the stand your ground law.
Martin’s family, their attorneys, and civil rights leaders face the terrible reality that if Zimmerman walks, there will be little recourse from the feds. It’s not just. It’s not fair. But, unfortunately, it’s the system.

Earl Ofari Hutchinson is an author and political analyst. His new ebook is America on Trial: The Slaying of Trayvon Martin (Amazon). He is an associate editor of New America Media. He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the host of the weekly Hutchinson Report on KTYM 1460 AM Radio Los Angeles and KPFK-Radio and the Pacifica Network.
Follow Earl Ofari Hutchinson on Twitter: http://twitter.com/earlhutchinson

Yes, as Earl writes, race is certainly playing a part in how people are seeing the George Zimmerman trial. Race is the lens through which we see this Rorschach test in black, white and brown.

Still, it’s important not to over interpret the divide. Racial politics played a part in first not charging, then charging and perhaps overcharging Zimmerman. Most people, however can make a subtle, but important, distinction between being factually guilty and legally guilty.

Ironically, many in the Black community made this distinction during the OJ trial. I interviewed people for a story, who believed that OJ was factually guilty of the killings. Some thought that he shouldn’t be found guilty for reasons of racial politics and payback against the police and judicial system. Others, while believing OJ did it, judged that there was reasonable doubt in the legal sense because of the clear perjury of two LAPD officers and the amazing tour that Det. Vannatter took the blood samples on. They believed the police framed a guilty man.

I have to admit that I, a white man, fall into the second category. I believe OJ was factually guilty, but given what was presented in court, I couldn’t have voted to convict. Jurors are sworn to the law and evidence—not their instincts.

I suspect the same distinction between factual guilt and legal innocence is at play here. This time there seems to be a wide agreement across the racial/ethnic spectrum. Almost everyone believes that if George had stayed in the car, Trayvon would be alive. Virtually everyone can agree that George “profiled” Trayvon and that if a white kid in a blue blazer had been walking in the neighborhood, he wouldn’t have been confronted—no less killed.

Few are comfortable with the prospect of Zimmerman simply walking. Many feel he should pay for his actions. What that price should be varies by race, but not as much as the pundits on cable seem to believe.

While the pundits are entitled to their beliefs, they have become outraged advocates of those beliefs. They are ginning up the racial aspect of the case. As they sense the tide turning against a Murder 2 conviction, they seem to be setting people up to be outraged if there’s an acquittal. They’re covering not current riots, but their own preparations for riots. They’re creating expectations, and telling the usual actors to gather. They’re anticipating trouble—much of it of their own making.

The courts aren’t the place to put America on trial. It’s not their job to remediate centuries of abuse, end racism, or make a judgment on our gun culture. While these are all important subjects, this court is charged simply with trying the evidence in this one case. Anything else is beyond their purview.

The instant that Sanford police officials in March, 2012 leaked to the media school records that showed Trayvon Martin had been suspended from school for possessing a trace amount of marijuana, there was little doubt that George Zimmerman’s defense attorneys would jump all over this to prove their point about Martin. The point was, and is the centerpiece of their Zimmerman self-defense claim, that Martin’s marijuana use made him edgy, aggressive, and violent. And since this is supposedly the case, it bolsters two of Zimmerman’s contentions that Martin came under his watch because of his drugged out, suspicious behavior and more importantly that Martin attacked him and he had to resort to deadly force to save himself from mortal harm from a doped out Martin. A toxicological report found a trace amount of marijuana in Martin’s system the night of his slaying.
Zimmerman’s attorneys wasted no time in loudly demanding that this be entered as prime evidence of Martin’s alleged aggressiveness. Prosecutors rightly opposed its admission as being irrelevant since Zimmerman could not have known this and even if he had ESP and did know it there is absolutely no evidence that marijuana use predisposes anyone to violent behavior. Judge Debra Nelson initially seemed to agree. Her reversal and decision to allow Martin’s alleged marijuana use into the trial is potentially a huge sop to the defense.
But if facts mean anything it shouldn’t be. The few studies that have tried to link marijuana use to violent behavior have managed to prove only two things. One is that there is no firm connect between the drug’s use and individual violence. The other is that whatever violence an individual that tokes up may exhibit is because that individual has a violent or criminal history. In other words, there’s a predisposition to violence that has absolutely nothing to do with their marijuana use. The White House which relied heavily on a report from the Office of National Drug Control Policy takes a hard-nosed stance against marijuana liberalization and any slack off in tough federal enforcement of medical marijuana regulation. But it did not make any case that marijuana increases violence. It focused instead on the need for enforcing the law and continued to insist that marijuana represents a health hazard, and a harmful addiction, but violence due to its use, no. Even if there were no studies on marijuana use and violence or White House concern over marijuana use and its alleged harmful effects, the notion that marijuana use spurs violence notion is ludicrous.
The National Survey on Drug Use and Health, 2009 and 2010, report found that nearly two-thirds of the nation’s adult population aged 21 to 54 has used marijuana at least once. Common sense would tell us that if even a fraction of the tens of millions of people that have tried marijuana rampage in their homes and in the streets, the jails would be bursting at the seams with those arrested for drugged out marijuana induced violent acts. However, that’s only part of the problem in trying to separate fact from deliberate distortion about marijuana use.
The other part is the public perception of who uses drugs and their effects. Studies and reports have overwhelmingly found that African-American students are far more likely than white students to be suspended or expelled from school for marijuana use and possession. They are far more likely to be arrested and convicted for drug use than whites. This despite countless studies that show that blacks do not use drugs in any greater incidence than whites, and in some cases, even less than whites. This reinforces the deeply ingrained stereotype that not only is the average drug user and pusher a young black male. But that a young black is the cause of most of the drug related violence in the country.
Zimmerman’s defense attorneys, however, aren’t interested in these facts or the corrosive effects of racial stereotypes and drugs. Their defense game plan is to tar Martin as a violent druggie and further muddle the issue for jurors whether Martin’s behavior was the trigger for his killing. This was crudely and insultingly put by one of the attorneys to Martin’s mother on the witness stand when he flatly asked her whether she thought he had any culpability in his death.
The issue then boils down to whether the Zimmerman jurors can separate his defense attorney’s deliberate muddle of the facts and trash of Martin and see that there’s absolutely no credible proof that marijuana use in and of itself induces violent behavior in anyone. There is not a scintilla of evidence that Martin was inherently aggressive and violence prone. The prosecution’s job is to make sure that they see this. Anything short of this could bolster the terrifying thought the defense has worked overtime to implant and that’s that marijuana use made Martin a legitimate target.

Earl Ofari Hutchinson is an author and political analyst. His new ebook is America on Trial: The Slaying of Trayvon Martin (Amazon). He is an associate editor of New America Media. He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the host of the weekly Hutchinson Report on KTYM 1460 AM Radio Los Angeles and KPFK-Radio and the Pacifica Network.
Follow Earl Ofari Hutchinson on Twitter: http://twitter.com/earlhutchinson

The talking heads on TV are obsessed with whether the now former president of Egypt, Mohammed Morsi, was displaced by a military coup or if we could give it some other name in order not to be bound by a law that forbids us from giving aid to regimes who assumed power by mostly military means. It is a silly question and a trivial obsession. We love elections unless we hate the results. We hate coups unless we love the results. Most critically, we mistake elections for democracy. One election is not democracy. Several elections where power is peacefully transferred and the losers not jailed, is democracy.

The Arab Spring is being exposed for what it is, and that is a series of military coups. Starting in Tunisia Zine El-Abadine Ben Ali was deposed as much by the generals as the people in the streets. Ben Ali was old and corrupt, so when the people massed the generals had to decide whether to kill their own people to defend a player who would not be long on the stage. They decided to protect their own legacies and power, so they threw Ben Ali under the bus of history.

Exactly the same pattern of thought and calculation was followed in Egypt. Mubarak was also old and corrupt and sick. He too was not worth defending. The military decided to let him fall in order to protect themselves. Mubarak was in fact deposed by a military coup. The generals then allowed an election and tolerated the government of the Muslim Brotherhood, but had no great love for them.

The Egyptian military is largely American supplied and to a significant extent American trained. The Muslim Brotherhood and Mohammed Morsi tried to purge the army of officers who might not toe the line. They clearly failed. As in Turkey, the military is religiously Muslim but attitudinally secular. They’re pragmatists not ideologues. They don’t want war with Israel or social chaos in Egypt.

They got rid of Mubarak and now Morsi. Will we approve of this coup? After all, we claim that a democratic election confers a protected status. Just ask and answer the following question: If a mob in Gaza overthrew the elected Hamas government, would we recognize the new government? Okay, just another rhetorical question.

Two weeks into the George Zimmerman trial the debate has intensified over whether Florida state prosecutor Angela “tough on Crime” Corey and her team is helping or hurting their case against Zimmerman with their witnesses. The string of witnesses has offered a mixed bag of both damning and corroborative testimony against and for Zimmerman that has been more than enough to the send a red flag up. Though Zimmerman is not a police officer being prosecuted for misconduct, he’s the closest thing to it without a badge. And that conferred on him some of the same perks that cops tried for misconduct get in hyper racially charged cases where the victims such as Trayvon Martin are young African-American or Hispanics.
The two biggest are the top flight defense attorneys that defend police officers or those with some legal standing. They routinely twist and turn prosecution witnesses and their testimony inside out. They use a storehouse of techniques from subtly playing on racial stereotypes to dredging up the often checkered personal histories of prosecution witnesses to impugn their character, veracity, and integrity. This template has been employed with near textbook lethal efficiency by Zimmerman’s defense attorneys.
The far bigger perk, though, for defendants such as Zimmerman are often the prosecutors. They are loath to bring charges against police officers or those that have close ties with the police that are accused of misconduct. More than a decade ago the U.S. Civil Rights Commission in its landmark study,” Who’s Guarding the Guardians,” of the conduct of police and prosecutors in civil rights cases, told exactly why. It cited the traditionally close relationship between district or county attorneys and police officers, who usually work together to prosecute criminals, the difficulties they have in convincing grand juries and trial juries that a police officer did not merely make an understandable mistake, but committed a crime; and the lack of information about cases that could be prosecuted or systems for reviewing possibly prosecutable cases.
These hurdles were plainly evident in the moments after Martin was gunned down. Zimmerman was not arrested, his statements largely were accepted without corroboration, and photos after the fact of his alleged injuries at the hands of Martin were widely distributed, and the leaks about Martin’s alleged bad behavior while silent about Zimmerman’s run-ins with the law. Then there was the initial decision by Sanford police officials in consort with local prosecutors not to file charges against Zimmerman.
The testimony of the first prosecution witnesses stirred the controversy. One virtually fingered Martin as the aggressor. And one Sanford police officer strongly hinted that he thought Zimmerman was telling the truth about his version of the confrontation with Martin and that an audiotape of the police dispatcher call seemed to support it. Another one tried to shoot down the notion that Martin was racially profiled by Zimmerman. Prosecutors hammered both on their statements and got them to partially back away from them. One was so prejudicial in favor of Zimmerman that the judge even ruled that it could not be admitted. But the jury still heard the officer’s supportive words of Zimmerman.
The way around the often ingrained reluctance of local prosecutors to prosecute cops or individuals such as Zimmerman or prosecute tepidly has been to appoint a special prosecutor supposedly who can be independent, objective, and with no close ties to law enforcement or those close to law enforcement in a city or county where the cops have been accused of misconduct. That’s why Corey was chosen to prosecute Zimmerman. But the U.S. Civil Rights Commission noted that the appointment of a special prosecutor does not guarantee that police officers accused of wrongdoing will be prosecuted and ultimately punished. In many cases, the special prosecutor is another county or district attorney selected from a neighboring jurisdiction that may be subject to the same biases and partiality as the original prosecutor. The Commission cites numerous examples where special prosecutors have been appointed in high profile cases to eliminate real or perceived bias by local prosecutors for the defendants yet the prosecution has still failed to get a conviction.

The conventional wisdom is that a hard line law and order prosecutor such as Corey will pull out all stops to nail a Zimmerman. But the mish mash testimony from the prosecution witnesses against him can’t be casually dismissed when there’s the ever present danger that jurors can interpret confused testimony from prosecution witnesses to mean that it has not proven its case against a defendant beyond the high standard of beyond a reasonable doubt. The job of Zimmerman’s defense attorneys is to create just enough doubt to win acquittal or at the worst play for a hung jury. The absolute disastrous thing that can happen in these cases is for the prosecution to do anything that can be construed by jurors as aiding and abetting the defense. This is even more imperative in a touchy, polarizing, high profile, racially charged trial.
The prosecution needs its best A game to insure a conviction in these type cases. Without second guessing the Zimmerman’s prosecution’s choice of witnesses and testimony or trial outcome, the jury as always in these cases is out on how well the prosecution does its job.

Earl Ofari Hutchinson is an author and political analyst. His new ebook is America on Trial: The Slaying of Trayvon Martin (Amazon). He is an associate editor of New America Media. He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the host of the weekly Hutchinson Report on KTYM 1460 AM Radio Los Angeles and KPFK-Radio and the Pacifica Network.
Follow Earl Ofari Hutchinson on Twitter: http://twitter.com/earlhutchinson

I’m ready to kill the messenger. I’m completely disgusted with the news—and by the news, I don’t mean what is actually happening. I mean how we in the media both cover the news and what we choose as the news.

The reason I want to kill the messenger is that the priorities the media make in choosing news are wrong and morally corrupt . The opinion that we in the media have of you, Dear Consumers of, what we call “news,” is so low, that you should feel both insulted by our view and angry that you are being fed pabulum, empty calories and junk instead of the nutrient rich information that makes for an informed, and therefore healthy, democracy.

The Middle East is exploding. Our foreign policy efforts are in ruins. Turkey is being driven towards becoming an Islamic state. Syria is in a civil war marked by atrocities on both sides and is hemorrhaging refugees across its borders, while Jihadis flowing from the Arab World meet Iran-backed Shiites to fight over the corpse of Syria. Jordan trembles on the brink of ruin, and our good friends, the Saudis, are becoming uneasy under their crowns.

The biggest story in the Middle East is Egypt coming apart and teetering on the brink of civil war. The Muslim Brotherhood, having been elected, plans on staying in power by divine decree. So now many, both in Egypt and the rest of the world, feel uneasy supporting the over-throw of an elected government, especially by the military. Complex issues here.

Meanwhile on the home front, the employer mandate for Obama Care has been postponed a full year, student loan rates have doubled and the head of our NSA has admitted to lying under oath in front of congress. So what is the most important story in the nation? George Zimmerman.

Our media is obsessed with the trial. All over the Net, on all the cable (so-called) news stations, it is wall-to-wall Zimmerman coverage. As we in the media have made everything into horse race competition from politics to cooking, now we give you the play-by-play analysis of the trial. Who is leading? Who just scored a point? What is the racial meaning of it all? How will the jury decide? Don’t wait. Don’t report. Just guess.

I search for news, real news and virtually all I get is this racial Rorschach. There’s a story of some substance that transcends Zimmerman, but we won’t get to it—unless he is acquitted and there’s rioting. Then we’ll wonder at our own responsibility in promoting this for fun, viewership and profit.